FLEMING: Kagan’s necessary recusal

Obama administration’s timeline doesn’t make sense

Before she joined the high court, Justice Elena Kagan was President Obama’s solicitor general. When the federal government is involved in litigation before the Supreme Court, the solicitor general’s office is responsible for the government’s side of the case. That means the solicitor general is essentially the president’s top advocate before the Supreme Court.

In January 2010 the Justice Department began planning its legal defense for Obamacare. The law had not yet passed, but a team was already being assembled to formulate the administration’s legal defense strategy. Then-Solicitor GeneralKagan approved of her office participating in that planning and she appointed her top political deputy, Neal Katyal, to be the point person for her office. It was his job to bring then-Solicitor General Kagan in as needed.

If the solicitor general was involved in planning the Obamacare defense, which would be expected, then the Justice Department knows the degree of her involvement. When Attorney General Eric H. Holder Jr.testifies before the House Judiciary Committee on Thursday, he must finally answer some important questions about Justice Kagan and her role in planning the defense for a law that she will rule on next year, unless she does the right thing and disqualifies herself from the Obamacare case.

The limited information we know about Justice Kagan’s involvement with Obamacare is from partially redacted emails that the Justice Department released in response to Freedom of Information Act (FOIA) requests. From that incomplete record it is clear that then-Solicitor General Kagan was very much in the loop - as she should have been - while the Obamacare legal defense was being assembled.

After the release of those emails, I wrote a letter, signed by 48 other members of Congress, to the chairman of the House Judiciary Committee calling for a further investigation of Justice Kagan’s involvement in preparing the Obamacare legal defense. The chairman,Rep. Lamar Smith, wrote to Mr. Holder, requesting copies of every document related to her involvement and permission to interview twoJustice Department employees. It took four months to get a reply from an assistant attorney general who called the request “unseemly” and refused to cooperate.

When the attorney general is on Capitol Hill this week, there are questions he must answer. The deputy who worked for Solicitor GeneralKagan says she was “walled off” from the Obamacare discussions. If that’s the claim, then Congress needs to know how and why. How, specifically, was Elena Kagan kept from the solicitor general’s customary role of providing counsel on what would become such a crucial case? Why would the attorney who would lead the government’s defense on Obamacare be “walled off” from planning that defense? To reiterate an earlier point, the Supreme Court vacancy that the solicitor general would fill was not announced until April. Is it reasonable to believe that prior toApril, the solicitor general was being intentionally kept out of every conversation pertaining to the administration’s Obamacare defense?

The law is clear. Justice Kagan must disqualify herself if her “impartiality might reasonably be questioned” or if, as solicitor general, she “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case” (28 U.S. Code, Section 455). The scant evidence that’s already been made available strongly suggests that she has crossed both thresholds concerning Obamacare. But, if the attorney general disagrees, then the burden of proof is on his shoulders. He’ll have the opportunity on Thursday to fully explain how it’s possible that as solicitor general, Justice Kagan did not provide any counsel on the government’s Obamacare defense. Anything less than a full and transparent explanation will leave an inevitable conclusion: It is fully reasonable to question Justice Kagan’s impartiality on this case and therefore, she must recuse herself.

Mr. Holder promised to “make openness the default, not the exception” when responding to FOIA requests. Yet, in this case, his department has told a congressional committee, “We respectfully decline to produce the documents and access to individuals requested.” Very soon, we will witness a Supreme Court hearing and ruling on a case with far-reaching implications for our nation’s future, and the American people have a right to know if the states bringing the challenge to Obamacare will receive a fair hearing. It is time for the attorney general to be transparent about this matter.